Human Rights Trump Religious Freedom in Polygamy Case

Canada's Charter of Rights and Freedoms must protect the rights of all individuals, not just of those who commit egregious actions in the name of religious freedom. It is in this spirit that B.C.'s Chief Justice ruled to uphold Canada's polygamy laws on Nov. 23, 2011. Polygamy, he concluded, was harmful to women and children who are often coerced into such unions through physical and sexual abuse. According to the judge, it institutionalizes gender inequality and its harmful effects far outweigh the validity of the right to religious freedom. However, he also cautioned against the prosecution of minors in polygamous marriages.

This development permits the prosecution of individuals who opt for a polygamous lifestyle. Women and children forced into such marriages can now seek redress for any coercion and physical or sexual abuse through the law. Human rights and children's rights activist are now also in a better position to monitor human rights abuses in polygamous communities in B.C.

To answer to objections raised by polyamorous couples and communities, the judge clarified that the law does not apply to multiple common-law unions. He stated that the law must only be applied to unions that enjoy some form of civil or religious sanction. He also noted that polyamorous relationships are based on consent and equality of the parties concerned, rather than on male dominance that is rightly associated with polygamy.

The case sets a positive precedent for other communities invoking the religious freedom argument to justify polygamy in Canada. Such groups also advance the argument that polygamy is beneficial to society where there are gender imbalances. This at least is the argument offered by a number of fundamentalist Muslim organizations across Canada. Toronto is home to over 200 polygamous marriages according to Imam Aly Hindi of Scarborough, Ontario, who has admitted to performing the marriage ceremony in such religiously sanctioned polygamous unions. Needless to say, women and children involved in such marriages suffer emotional trauma, heartbreak and abuse.

Orthodox Islam sanctions polygamy on the condition that a husband treats all of his wives equally. They must have equal access to the husband's resources, love and attention, and must have entered the union voluntarily. However, it stands to reason that the condition of equality is in itself superfluous for an institution that is inherently unjust in creating unfair social dynamics of power and control. While Muslim women certainly have the choice to enter into any kind of matrimonial arrangement, provided their choice is indeed genuine, first wives are often excluded from such decision-making. Polygamy is regarded as a man's prerogative to be exercised howsoever he chooses, often without regard to his first wife's feelings.

The Qur'an does not urge polygamous unions, it merely permits them. But social pressures in many patriarchal societies often force women to sometimes marry men who are already married. Women who opt for a more independent lifestyle, on the other hand, often face criticism from relatives and society. Chief Justice Bauman is right to conclude that "there is no such thing as so-called 'good polygamy.'"

Bauman's ruling is likely to be challenged by pro-polygamy groups. In such an eventuality, the government must apply the Notwithstanding Clause to protect women and children forced into these marriages. The B.C. Supreme Court ruling must also serve as a precedent to outlaw polygamy in Ontario and other provinces where the law is thus far unclear on the constitutionality of a ban on polygamy.